1722826 (Refugee)
[2021] AATA 2811
•19 May 2021
1722826 (Refugee) [2021] AATA 2811 (19 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722826
COUNTRY OF REFERENCE: Pakistan
MEMBER:Luke Hardy
DATE:19 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 19 May 2021 at 1:59pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Sunni Muslim – authenticity of documents – has provided an abundance of false and fraudulent documents – substantive claims are all fabricated – claimed fear of being persecuted is not well founded –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 359, 424, 424AA, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Ex parte Applicant S154/2002 (2003) 201 ALR 437
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZGUR (2001) 241 CLR 594
MIAC v SZIAI (2009) 111 ALD 15
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Singh (1997) 74 FCR 553
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
MIMIA v SGLB (2004) 207 ALR 12
MIMIA v VSAF of 2003 [2005] FCAFC 73
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 43
SBBA v MIMIA [2003] FCAFC 90
Selvadurai v MIEA (1994) 34 ALD 347
SJSB v MIMIA [2004] FCAFC 225
Sun v MIBP [2016] FCAFC 52
SZBEL v MIMIA (2006) 228 CLR 152
SZJCL v MIAC [2007] FMCA 839
SZLJK v MIAC [2008] FMCA 694
SZMCE v MIAC (2008) 105 ALD 508
SZNBX v MIAC (2009) 112 ALD 475
SZNWA v MIAC [2010] FCA 470
WAKK v MIMIA [2005] FCAFC 225Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr [A], is a Sunni Muslim citizen of Pakistan and resident of Punjab province. He was granted a family-sponsored visitor visa on 10 May 2017. The visa was valid to 8 July 2017. Mr [A] arrived in Australia [date] June 2017, the visa still due to expire on 8 July 2017.
Mr [A] lodged his protection visa application on 6 July 2017. He was interviewed by a delegate of the Minister who refused to grant the visa on credibility grounds on 8 September 2017. Mr [A] then sought merits review by this Tribunal, presently constituted by me. For the purposes of this review, he submitted a copy of the delegate’s decision which contains a summary of his claims, references to factual issues raised and discussed, and a long list of independent country information consulted which is also before me.
Mr [A] appeared before the Tribunal on 7 May 2021 to give oral evidence and present arguments. He was accompanied by his adviser, a migration agent. The hearing was facilitated by an interpreter in the Urdu-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted evidence, Mr [A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the reasons given below, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Claims
Mr [A] claims he was a member of a Sunni religious association called [Organisation 1] in his home district [District 1], Punjab. He claims that although Sunni are by far the religious majority in Pakistan, the member of the country’s small Shi’a minority were the local demographic majority in his home district. He claims that in the event of return or removal to Pakistan he would face persecution for reasons of “religion” from two Shi’a hoodlums and their gangland associates. He claims that based on repeated attacks from these two people, he would not be able to avail himself of protection from the state and felt that they would locate him wherever he tried to relocate within Pakistan.
Mr [A] claims that he was given the task of helping to organise a religious festivity adjacent to his local mosque in July 2012. He claimed that ahead of the date of the festival he was accosted by two local Shi’a hoodlums called [Mr B] and [Mr C] (not described as having been related; I refer to them in this decision as [Mr B and Mr C]) who warned him under threat to his wellbeing that he should cancel the festival. He claims he ignored the threat and was then accosted by [Mr B and Mr C] on 5 July 2012, while he was walking with two friends. He claims that [Mr B and Mr C] opened fire on him and his friends, killing one and wounding him and the other. He claims that his [Body Part 1] was shot off and that he was hit by a bullet shell below his [Body Part 2]. He showed me the scars but it was not self-evident that his injuries were caused by gunfire. However, in support of his claims he submitted to the Department a photocopy of a purported medical report referring to his wounds having been caused by gunshots. I note Mr [A] purportedly arrived for medical attention at 5pm on 5 July 2012.
Mr [A] claims he reported the shooting incident that day to the police. He submitted a copy of a purported First Information Report (FIR) to the local police. It is not signed by the person who purportedly made the report. It is also not signed by a police officer. According to independent country information,[1] FIRs must be signed by the complainant or if the complainant is not in a position to sign, by the receiving police officer. The FIR in this case is written in Mr [A]’s voice but not signed by anyone. Interestingly, the FIR was purportedly lodged by Mr [A] at 4pm on 5 July 2012. This means he evidently went to a police station to report an incident in which part of his [Body Part 3] was blown off before attending a hospital to have the wound treated and stabilised.
[1] Canada: Immigration and Refugee Board of Canada, Pakistan: First Information Reports (FIRs), 4 November 2010, PAK103605.E, available at: [accessed 4 May 2021]; “First Information Report (FIR) A Guide for Citizens,” Centre for Peace Development Initiatives Pakistan (CPDI-Pakistan), [date not located],
Mr [A] claims the police did nothing, but information in the FIR implies it was filed and processed. Although he repeatedly told me the police did nothing (after that), he submitted to the Department what appear to be flat-bed scans of purportedly original (i.e. handwritten in ink, and stamped and signed on printed pro forma) police arrest warrants for both of [Mr B and Mr C]. Such documents would normally be the property of the police. Mr [A] claims the police did nothing whereas they appear to have obliged in providing pristine scans of arrest warrants in the names of the alleged culprits of 5 July 2012.
Mr [A] submitted to the Department a photocopy of the purported front page from the 6 May 2012 edition of [Newspaper 1] . Mr [A] confirmed at the Tribunal hearing that the Urdu word for “May” appears in the newspaper’s banner. A translation of an article purportedly appearing on the front page the newspaper describes in detail similar to Mr [A]’s own the alleged events of 5 July 2012. This evidence appeared undermined by chronological absurdity: the newspaper was purportedly describing events that were not to occur for another two months. Mr [A] submitted a colour scan of the same newspaper to the Tribunal, with the purportedly relevant article located in the same corner of the front page. Again, the date of the edition was evidently 6 May 2012. However, at the Tribunal hearing, he showed me what he claimed was the actual hard copy edition of the 6 July edition (in which the Urdu word for July appears in the banner) and said that this was the edition on which he was asking the Tribunal to rely. The text in the relevant article in the purportedly correctly dated edition is identical to the text in the apparently misdated edition, and its location on the front page is directly under the banner, rather than to the right of it, as before.
Mr [A] also submitted to the Tribunal a photocopy of the purported front page of the 6 July 2012 edition of [Newspaper 2], highlighting with the use of arrows drawn on portions of Post-It stickers, an article which, translated, recounts his version of the alleged attack on 5 July 2012. At the hearing, he presented a purported hard copy of that day’s edition of [Newspaper 2]. The two versions are apparently the same. However, the consistency between these two items did not help me resolve the discrepancy between the date and contents of the two versions of the [Newspaper 1]. I asked Mr [A] if he could explain how this problem with [Newspaper 1] might have come about. In reply, he said that when he originally submitted the scan of the front page of that newspaper, he did not have the original hard copy of that newspaper, “but [referring to the purported hard copy of the 6 July 2012 edition] now I do.” I put to him that the problem remained that he had submitted to the Department and to me a copy of a purported edition dated 5 May 2012. In reply, he said this was all the lawyer’s mistake. I put to him that there was an additional problem with the purported 6 May 2012 edition of [Newspaper 1]: its banner stated that 5 May 2012 was a Friday when world history records that date as having fallen on a Sunday. In reply, he said he did not know this “muck up” had occurred and said he would like to consult his lawyer.
Mr [A] claims that [Mr B and Mr C] disappeared from the scene, although assumed still to be in Pakistan, and that the police were unable to locate them. He submitted to the Tribunal a printout from a purported [article]: “160 Pakistanis on Interpol’s ‘Wanted List’.” As indicated in the title, the article contains names of certain Pakistani nationals sought by the Pakistani police who had either absconded abroad or were still being sought domestically, their location unknown. Mr [A] appeared to mischaracterise the list cited in the article, saying that “anyone” can report somebody to Interpol. I put to him, on independent evidence, that only national police agencies that are Interpol members can put names on Interpol “wanted lists.” Individuals, however, may report indirectly to Interpol through national police agencies. I also note that
INTERPOL has six priority crime areas: drugs and organized crime, financial and high-tech crime, fugitives, public safety and terrorism, trafficking in human beings (including crimes against children), and corruption. Other crime areas of concern include, inter alia, environmental and intellectual property crime.[2]
[2]
The alleged events of 5 July 2012 appear to strike contrast with Interpol’s own priorities. I asked Mr [A] to direct me to any part of this report that he considered relevant to his case. He took me to a particular paragraph in the article which appeared the name “[Mr D].” Mr [A] told me that [Mr D] is the brother of [Mr C]. I put to him that they have different family names and he said this is common even amongst brothers in Pakistan. I asked him why [Mr C]’s brother, who he said is named [Mr D], was on the Interpol list and he said that it was because [Mr D] is involved in drugs trafficking and other crimes. He said that [Mr D] was mentioned in the Interpol list because he had been helping [Mr B and Mr C]. I put to Mr [A] that [Mr B and Mr C] themselves did not appear to be named anywhere in the list and he said in reply that this was because [Mr D] is more powerful. He said that [Mr D] is a notorious and powerful criminal. I then read the relevant paragraph of the report to Mr [A]. The paragraph describes [Mr D] as [an occupation] in Karachi (not Punjab) who reported to Interpol three named suspects in the “attempted murder of [Pakistan’s former] President Asif Ali Zardari during his detention in May 1999.” In reply, Mr [A] said he had not read the report before coming to the hearing. He said the report had been sent to him by a lawyer assisting him from Pakistan. He told me that the Pakistan-based lawyer had told him, “[Mr D]’s name is in the article.” I did not find this explanation helpful; it did not clarify anything.
Mr [A] then went to a different paragraph in the article in which appeared the name “[Name 1].” He said that this person was really [Mr B], notwithstanding that he had just told me that there had been no reference in the list to [Mr B] because [Mr D], who he purported to be the brother of [Mr C], was the more powerful criminal. I put to Mr [A] that he had directed me to a name that was different in two significant respects from the name of [Mr B]. In reply, he said to he that he had only just then (at that moment during the hearing) located the name “[Name 1].” He added, “Even my city’s name is mentioned.” I put to him again that “the name “[Name 1]” is not the same as “[Mr B],” the point being that they appeared very reasonably to be two entirely different individuals. In reply, he said that “[Name 1]” was the identity under which [Mr B] had fled Pakistan. I put to him my concern about this information being new information, not hitherto provided; I also put to him that it was unsupported, and invited him to direct me to the evidence on which he based this new assertion. He did not respond to the point of my concern; rather, he said that his lawyer in Pakistan had sent him the list and that he had not looked at it until I drew his attention to it in the hearing. I put to him that he did not appear to have a plausible position about either of his alleged assailants being mentioned in the submitted article and he did not provide a cogent reply. Mr [A]’s evidence here struck me as being largely improvised and fabricated. He left me unsatisfied that it had any relevance to his claims whatsoever. I did find reference to a person named “[Name 1 variant 1],” the given name having a “z” rather than an “s” and the family name anglicised with an “e” instead of an “a,” suggesting different pronunciation of both names in Urdu, and hence indicating a different person, but Mr [A] did not take me to that name during the hearing, and he did not refer to it in post-hearing submissions. I note that he had earlier claimed to the Department that a “[Mr B]” was included in a list of most wanted persons issued by the “International Criminal Police Organisation.” It is my considered opinion that he performed very poorly as a witness in relation to the relevance of the article about the Interpol list and, on the evidence before me, I am not satisfied that the names “[Name 1 variant 2],” “[Name 1]” or even “[Name 1 variant 1]” in the list are [Mr B] as claimed.
Mr [A] claims that he lived four further years in Pakistan without being harassed by either of [Mr B and Mr C] or anyone connected with them. He claimed that things changed on 10 November 2016 as he finished a cash withdrawal transaction at a local ATM. He claimed he was accosted again by both [Mr B and Mr C] who demanded he hand over the money he had withdrawn and who threatened that if he did not withdraw his case against them they would kill him. he claimed he later reported this incident to the police who still failed to find and arrest the pair. He claimed the police were not genuinely interested in pursuing the matter due, he said, to the respective [Mr B and Mr C]’ “political and police” connections. Citing independent country information, the delegate put to Mr [A] that it seemed unlikely that two Shi’a Muslims would have such clout in Pakistan given how frequently repressed the Shi’a minority is there. I reminded him of this discussion and, in response, he said that the Shi’a are very powerful in [District 1].
Mr [A] submitted to the Tribunal a photocopy of what purported to be the front page of the 11 November 2016 edition of [Newspaper 2], along with an English translation of an article highlighted with hand-drawn arrows on fragments of Post-It stickers. The article, as translated, recounts what appears to be Mr [A]’s version of the alleged episode of the day before, although it does not tell its readers when the event occurred. Concerned about the discrepancies I found with regard to the [Newspaper 1] , I conducted an Internet search for a [Newspaper 2] archive. I found one dating back to 2015 on the Facebook page of [Newspaper 2]. This means I was unable to go back as far as 56 July 2012 to try and verify the front page layout of that date, but I was indeed able to locate two editions of [Newspaper 2] of 11 November 2016. Not only did the article about Mr [A] appear in neither edition, but none of the other items on the front page of the photocopy he submitted, or for that matter the hard copy he tabled at the hearing, appeared anywhere in either of them.
I put to Mr [A] that I was raising these concerns about the quality of the FIR and newspaper evidence, and other purportedly authoritative documents submitted in this case because DFAT reports[3] that forgeries of all these kinds of documents are easily obtained either by bribing people in the institutions responsible for issuing or publishing the material, or by engaging the services of counterfeiters.
[3] DFAT Country Information Report Pakistan, 20 February 2019
In response to the concerns I raised, Mr [A] said that he had contemporaneously purchased all the hard copy editions of the newspapers he had submitted in evidence from a local newspaper vendor. He said the article in his hard copy edition might not have appeared in the editions published on the newspaper’s official Facebook page because there are different local district editions of [Newspaper 2]. I considered this claim.
Since the screen captures of the [Newspaper 2] pages of 11 November 2016, as archived in that newspaper’s official Facebook account, appeared to contain no reference to Mr [A] or the alleged episode of the preceding day, it occurred to me that this was in effect “information,” by virtue of being an evident lack of information, about specific persons, i.e., Mr [A] and [Mr B and Mr C]. Accordingly this was information that I felt required to draw to Mr [A]’s attention under the protocols of either s.424A or s.424AA of the Migration Act. Having regard to the Act, I therefore put to Mr [A] that the lack of information about him and his assailants and the alleged episode of 10 November 2016 in the archived editions I had located was “information” that contradicted the material he had submitted in support of his claims. I put to him that if he could not resolve this discrepancy, it might cast into doubt the authenticity of other documents and the truthfulness of his claims generally. I put to him that subject comments on or responses to these concerns, the inconsistency discussed here would be a reason of part of a reason for refusing the application under review. I indicated that I was inviting Mr [A] to comment or respond orally and asked him if he wished to do so immediately or if he needed more time.
Mr [A]’s adviser intervened at this moment, which I felt he was entitled to do. He asked that Mr [A] be given an opportunity to comment and/or respond in writing. I put to Mr [A] and to his adviser that I had considered how to proceed prior to conducting the hearing and had come at least to the preliminary view that I should invite oral comments and/or responses from Mr [A]. I considered this request to provide him with an opportunity to comment and/or respond in writing and concluded that I wanted to hear oral comments and/or responses from Mr [A]. An adjournment was requested and I granted ten minutes, after which we resumed and Mr [A] said he had no comment or response and asked me to continue.
I invited Mr [A] to comment on the delegate’s questions about whether [Mr B and Mr C] or someone else might have harmed him in 2012 and 2016 for completely unrelated criminal reasons and he said that this was not the case. He said that religion must have been the essential and significant factor in the harm he had suffered.
I put to Mr [A] that contrary to his position in evidence to me that the police had done nothing in his case(s), he had submitted abundant material indicative of robust attention on the part of the police (e.g., the purported arrest warrants, the media purportedly reporting that the police were investigating). In reply, Mr [A] said the results essentially spoke louder in that the police had been unable to arrest [Mr B and Mr C] and commit them to trial.
Mr [A] gave evidence to me of having been ale to continue his work with [Organisation 1] every year after 2012 right up until he came to Australia without further incident. It appears this was one of the reason why the delegate had raised the question about whether Mr [A]’s problems, even if partially true, had nothing to do with his work for [Organisation 1].
Mr [A] told me I could check the authenticity of the 10 November 2016 FIR because it has a Punjab Police QR code printed on it. After the hearing, I tried to use the QR code but it was too indistinctly rendered in the material submitted.
Mr [A] submitted what purported to be a colour photocopy of a genuine NADRA-authenticated death certificate for the friend who he said was shot on 5 July 2012. The issue date of the certificate, however, is 6 October 2017, which was five years after the event of decease. I drew to Mr [A]’s attention the fact that the certificate states that the “Reason of Death” in his friend’s case is given in the certificate as “Natural” and that the “Nature of Death” is given as “Normal.” In response, Mr [A] drew my attention to a remark appearing below the date 6 October 2017: “Additional Information: MURDER.” Mr [A] tabled the purported original from which the photocopy was taken. Photochromic devices and a watermark satisfy me that the 6 October 2017 certificate is genuine, but I was still left with concerns as to whether its “Additional Information,” evidently provided five years after the alleged fact, could be relied upon as factual authoritative or merely reflective of the material submitted to NADRA for inclusion. A search of independent country information[4] discloses that even some NADRA documents can be unreliable due to sophisticated falsification of evidentiary material to be certified by NADRA or simply due to the bribing of NADRA officials to generate documents containing misleading information. On consideration of the evidence in this matter as a whole, I find I am not inclined to rely on the addition of the note on 6 October 2017 about the friend’s cause of death on 5 July 2012 having been “MURDER”. I give the death certificate very little weight in this matter.
[4] Canada: Immigration and Refugee Board of Canada, Pakistan: Fraudulent documents, including non-identity documents such as academic qualification documents, travel documents, First Information Requests (FIRs), land ownership titles and newspaper articles, and identity documents including identity cards and birth certificates; methods of obtaining fraudulent documents and assessing the credibility of fraudulent documents (2012-December 2014), 14 January 2015, PAK105021.E, available at: [accessed 5 May 2021]
Mr [A] presented another NADRA-issued death certificate to support a claim about another person having been killed, this time on [date] July 2018. The certificate is more contemporaneous with the event of death in this instance: it was issued on [date] August 2018. The information in the certificate is generally more congruous as well: not only does the “Additional Information” say “MURDER” in this case, but the “Reason of Death” is given as “Un-natural.” A check of the photochromic device and the watermark satisfied me that the document was actually issued by NADRA but having considered all of the evidence in this matter as a whole, Mr [A]’s account of how it related to his case did not satisfy me as being factual.
Mr [A] submitted another FIR, purportedly lodged by the relative or neighbour, in connection with an attack on a house involving gunfire on [date] December 2018. The purported FIR is dated the same. According to the English translation, the report says it has been signed by hand by a named complainant, but there is no signature visible in the document. There is a QR code in one corner of the document but it took me to nothing comprehensible in English. I give this purported FIR no weight.
Mr [A] made other claims associated with his core claims in evidence to the Department, and they are set out in detail in the primary decision record which he submitted to me. I have considered all of those claims.
Towards the conclusion of the hearing, Mr [A]’s adviser asked for more time to make written submissions in response to concerns I had raised in the hearing about the genuineness or otherwise of the documents submitted. I asked him how long he needed and his response suggested about a week. I granted one week. I made it clear to Mr [A] and his adviser that I would consider all arguments in their anticipated submission about any of the issues raised at the hearing.
I received a post-hearing submission on 14 May 2012. In that submission, Mr [A] spoke through his adviser. The submission runs only to one page and discusses only the issue of my concerns over [Newspaper 1]. That is to say, it sheds no further light on issues raised about the 6 October 2017 death certificate, the FIRs, the article about the Interpol list or the discrepancy between the authorised electronic version of the 6 July 2012 [Newspaper 2] and the hard copy tabled by Mr [A] himself.
To recap, Mr [A] submitted a colour scan of the purported front page of an edition of [Newspaper 1] in which appeared an article describing a violent attack on him and two others by [Mr B and Mr C], which he claims occurred on 5 July 2012, although the scan shows, as Mr [A] himself acknowledged, that date on that purported edition of the newspaper is 5 May 2012, which fell two months before the event it purported to describe. Also as noted, the purported edition submitted to the department and also to me wrongly described 5 May 2012 as a Friday.
In the post-hearing submission, it is argued that the “5 May 2012” edition of [Newspaper 1] “was mistakenly provided to the Tribunal by the applicant [Mr [A]] prior to the hearing on 07 May 2021.” I note the same was also provided to the Department back in 2017. The post-hearing submission states that the alleged mistake arose because of the manner in which Mr [A] had originally been forced download the file featuring the front page of [Newspaper 1] from the official website of [Newspaper 1]. He said through his adviser, “The paper size of the Newspaper was of large size and it could only be downloaded in pieces. In [the course of] doing so some of the pieces got mixed up somehow.” I note that the colour scan of the front page submitted to the Department and to the Tribunal appears to be contained in a single photographic file; that is to say, I cannot see how it was put together from different pieces. The submission continues:
… when the mistake was realised by [Mr [A]], he managed to get the original Newspapers from Pakistan, namely [[Newspaper 1]] of 06 July 2012. [Mr [A]] then got the original Newspaper translated and it was then sent to the Tribunal. The news is correct and can be verified in following ways:
1. [an apparently misspelt email address]
2. [what appears to be the correct telephone number of [Newspaper 1]]
3. Local [editions of] newspapers can be [unique to] the local issuing city
4. All newspapers are available in the Foreign Office Pakistan. Under Pakistani laws they must keep them.
The […] reliability issue is linked with the Newspaper issue, [and] we therefore request the Tribunal to discard the newspaper which was mistakenly provided to the Tribunal in a hurry.
The alleged facts in this submission struck me as troubling for a number of reasons. Mr [A] had told me at the hearing told me that he had contemporaneously purchased all the hard copy editions of the newspapers he had submitted in evidence from a local newspaper vendor; he would therefore logically have been in a position to provide this copy much earlier than when he submitted it to me. Meanwhile, the post-hearing submission unequivocally argues that Mr [A] knew prior to the Tribunal hearing of a wrongly reconstructed [Newspaper 1] front page and sought immediately to correct the situation by obtaining a hard copy of that edition; however, he said none of this at the time of submitting the “correct” edition, and did not provide to me at the hearing anything like the explanation he provided in the post-hearing submission; hence more inconsistency in his evidence. In addition, none of the content in the allegedly mixed up version of the edition appears in what Mr [A]’s hard copy version, whereas, going by his explanation of the mistake that allegedly occurred, one would reasonably expect it to be. Moreover, none of Mr [A]’s explanations help to explain how the colour scan of the edition he originally submitted to the Department and to the Tribunal was dated “Friday 5 May 2012.” That error was simply not addressed I the post-hearing submission at all and, I consider, cannot be rationally attributed to Mr [A] having got mixed up while putting together sections of the one big genuine picture.
Added to all these concerns, this explanation about [Newspaper 1] Mr [A] does nothing to explain the discrepancy between the alleged 11 November 2016 edition of [Newspaper 2] tabled by Mr [A] and the archived editions in that journal’s official Facebook account. Rather, it causes me to be cautious of comments from Mr [A] about his edition having been published in a [sub-division] that is different from possible sub-divisions in which the Facebook-archived editions were published. They may have been morning and evening editions of the same thing, for all we know, or a national edition and international edition. Although he was provided time to direct me to information on the banners of the seemingly discrepant editions about their having been published for different [sub-divisions], the translation of the edition he submitted does not suggest this and, meanwhile, Mr [A] did not draw my attention to any such evidence in the post-hearing submission.
The Tribunal is under no general duty to obtain information.[5] It is well established that the powers in ss 359 and 424 to get information or invite a person to give information are discretionary or permissive. Generally speaking, there is no obligation on the part of the Tribunal to use those powers.[6] Nor are those powers the source of any obligation on the Tribunal to go further and seek more information that might enhance, detract from or otherwise be relevant to information which it has already received.[7] Furthermore, the Tribunal is not required to make an applicant’s case for him or her, but may ordinarily decide a review on what the applicant puts forward.[8] It is for the applicant to make his or her own case.[9] In SZMCE v MIAC[10] the Court observed in this regard that the Tribunal is not an adversarial cross-examiner but an inquisitor obliged to be fair and that in an application for a review, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the Tribunal to decide whether his claim has been made out.
[5] MIAC v SZIAI (2009) 111 ALD 15 at [25]; MIMIA v SGLB (2004) 207 ALR 12 at [43], [124]; MIEA v Singh (1997) 74 FCR 553 at 561; SBBA v MIMIA [2003] FCAFC 90 at [8]; MIMIA v VSAF of 2003 [2005] FCAFC 73 at [20]; and SZJCL v MIAC [2007] FMCA 839 at [53].
[6] See MIAC v SZIAI (2009) 111 ALD 15 at [25]; MIMIA v SGLB (2004) 207 ALR 12 at [43], [124]; MIEA v Singh (1997) 74 FCR 553 at 561 and SBBA v MIMIA [2003] FCAFC 90 at [8]; SJSB v MIMIA [2004] FCAFC 225 at [16]; MIAC v SZGUR (2001) 241 CLR 594 at [20].
[7] MIAC v SZGUR (2001) 241 CLR 594 at [86]. The respondent in that case submitted information in relation to his medical conditions in response to a s 424(1) letter. The Court held that the Tribunal was bound to have regard to that information, but was not obliged to seek further information in relation to those conditions.
[8] SZNWA v MIAC [2010] FCA 470 at [41]; SZLJK v MIAC [2008] FMCA 694 at [26]. See also SZMCE v MIAC (2008) 105 ALD 508 at [22] where the Court rejected the applicant’s argument that the Tribunal was obliged to make enquiries into the authenticity of a magazine article submitted by him. The Court observed that the Tribunal is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for a review, it is for the applicant to advance whatever evidence or argument he or she wishes to advance, and for the Tribunal to decide whether his or her claim has been made out. Similarly, in SZNBX v MIAC (2009) 112 ALD 475, the applicant asked the Tribunal to contact his lawyer in Latvia to verify his claims. However, he did not provide the Tribunal with the lawyer’s number. The Court found that the Tribunal’s failure to enquire was not unreasonable, and that it was for the applicant to make his own case and provide sufficient information that would enable the Tribunal to come to a state of satisfaction: at [26]–[30].
[9] Prasad v MIEA (1985) 6 FCR 155 at [169]–[170]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
[10] SZMCE v MIAC (2008) 105 ALD 508 at [22]. In that case, the Court rejected the applicant’s argument that the Tribunal was obliged to make enquiries into the authenticity of a magazine article submitted by him. See also, SZNBX v MIAC (2009) 112 ALD 475 at [26]–[30].
In this case, Mr [A] was purportedly aware of a factual anomaly some time before the hearing, but provided no meaningful explanation for it during the hearing, causing me to doubt the truthfulness of the explanation he provided post-hearing. Although he claims to have known about this factual problem prior to the hearing, he did nothing to try to correct or resolve the record of evidence to date before the hearing commenced. This leaves me disinclined to make further investigations on his behalf. In addition, he has provided an incorrect email address that is easily corrected by looking at the banner of [Newspaper 1], but that does not mean the information will connect the Tribunal in a timely fashion with anyone in particular at that newspaper who might be helpful to him; the same goes for the telephone number, which appears merely to be the newspaper’s switchboard operator, human or automated. It was open for Mr [A] to engage somebody from the newspaper to write to the Tribunal prior to the hearing, or speak at the hearing as a witness. speak or write as a witness This also leaves me disinclined to undertake investigations on Mr [A]’s behalf.
Finally, the Tribunal cannot legally discard any evidence submitted to it, not even evidence submitted by an applicant that the latter no longer regards as useful.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]
[11] MIMA v Rajalingam (1999) 93 FCR 220.
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[14]
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[14] Sun v MIBP [2016] FCAFC 52 at [69].
I have considered all of the evidence in this matter cumulatively.
I accept that Mr [A] is a Sunni Muslim Pakistani national from [District 1] with a sizeable Shi’a population. On independent evidence, and the vagueness of Mr [A]’s unsupported claims on the subject, I dismiss as fanciful his suggestion that Shi’a are so powerful, even in Pakistan’s districts where they are in a majority, that the Pakistani police are scared or otherwise unable to go after them in instances where they are suspected of having committed offences.
I accept that Mr [A] was a member of the local [Organisation 1] from about 2008 until 2017 when he effectively left the group because he had already come to Australia. I accept that he remained active with the group. I give weight to his having continued to be active with the group until he left for Australia, as his association with the group continued for around five years after the alleged events of 2012 without any continuation or escalation of problems arising due to his involvement with the group. (His claims about the attack at the ATM in 2016 were not evidently related to his continuing to belong to [Organisation 1] but, rather, allegedly related to “money” and the criminal case he had lodged against [Mr B and Mr C].)
My problems with the inconsistencies, incongruities and other defects in Mr [A]’s evidence have been quite exhaustively detailed above. Ultimately, I am not satisfied that the FIRs or the newspapers he presented either in file form or as printed copies are genuine. I am not satisfied that I can rely on the medical report regarding the injury to his [Body Part 3] and [Body Part 2]. I find it illogical that, in circumstances where a significant portion of his [Body Part 3] had been blown off, and also bleeding from near [Body Part 2], he would not have gone to the hospital until after finishing an FIR at a police station.
On the evidence before me, I find that Mr [A] has submitted fraudulent editions of the two newspapers: two fraudulent editions [Newspaper 1] and one fraudulent edition of [Newspaper 2], dated 11 November 2016. On this evidence, I am not satisfied that the 6 July 2012 edition of [Newspaper 2] is a genuine document either.
I give no weight to the article about the Interpol “Wanted List.” I repeat here that Mr [A] performed very poorly as a witness in arguing the relevance of this article. I find his evidence was improvised and highly unsatisfactory.
I give very little weight to the death certificates even though I am prepared to accept that they were actually sought and obtained from NADRA.
All in all, I find that Mr [A] has provided an abundance of false and fraudulent documents in support of his account of having been persecuted by [Mr B and Mr C]. Not only that, he has not impressed me as an oral witness to his case, so I am not satisfied that he has merely submitted false documents in support of a true history. I find that he is a comprehensively unreliable witness in this matter and that his substantive claims in this matter are all fabricated.
What remains is the undeniable evidence of a wound below Mr [A]’s [Body Part 2], the awful loss of his [Body Part 1] and other permanent damage to other parts of his [Body Part 3]. However, on the evidence before me, I am not satisfied that these injuries were incurred in any potentially relevant circumstances.
I find that Mr [A] is able to return to his home district in Pakistan and re-join [Organisation 1] if he wishes and become active again with the latter and will not face persecution.
Having considered all of the evidence before me in its entirety, I am not satisfied that Mr [A] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a). ).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that Mr [A] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case. I find that the harm Mr [A] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
Mr [A]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to his comprehensive lack of reliability as a witness in this matter. In view of this, and of the "real risk" test imposing the same standard as the “real chance” test, those claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that Mr [A] will suffer significant harm. Accordingly, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that Mr [A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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